Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights potx

[...]... laws of the member states, it has done little to reconcile these or to situate them within some kind of European criminal procedural tradition The renewed interest in the regulation of the application of the substantive law cannot be said to have contributed much to the examination of the essence and form of procedural law and procedural rights Instead, the debate on systems of criminal procedure and. .. part, to the considerable case law amassed by the European Court (the Court) and Commission of Human Rights in their interpretation and application of Articles 5 and 6 of the European Convention on Human Rights (ECHR) But acceptance of this consensus would be to ignore the inherent tension in the phrase European criminal procedure law While the Strasbourg case law has undoubtedly influenced the procedural. .. Fairness Deficit: Acknowledging the European Procedural Tradition 6 Reassessing Fairness in European Criminal Law: Procedural Fairness, Individual Rights and Institutional Forms A Procedural Fairness as Individual Rights B Procedural Rights and Institutional Forms C Article 6 ECHR and the European Criminal Procedural Tradition D Towards an Institutional Understanding of Fairness in Criminal Proceedings Index... proceedings Further it is claimed that on the basis of their work it is possible to identify a common European conception of criminal proceedings In Part Two, the fair trials jurisprudence of the European Court of Human Rights is analysed in order to determine whether it can be said to be following the European criminal procedural tradition It is suggested that although the European tradition has been... groups: the accusatorial and the inquisitorial In Part One, this understanding of European criminal proceedings is challenged by an examination of the work of various important European jurists of the nineteenth century It is argued that their writings on the nature and form of criminal proceedings were instrumental in the developing conception of the principles which underlie the modern conception of criminal. .. between efficiency on the one hand and the rights of the individuals on the other Consequently the extent of the individual rights will be dependent on the manner in which the state authorities balance these opposing procedural priorities Critics of this approach have pointed to the fact that crime control and due process are not in fact opposing models and that these are of little use in the comparative... extent of the role of neutral officials in the inquisitorial system.26 The problematic nature of this approach is confounded by the fact that the methodology dictates the nature of the conclusions which are to be reached Consequently, the determination of whether the system can be classed as accusatorial or inquisitorial, or as moving towards one or other of the procedural forms, often becomes the goal of. .. Finally the implications associated with construing fairness principally in terms of individual rights are assessed Not only is this at odds with the European procedural tradition, it also excludes broader consideration of procedural fairness in the context of the criminal justice system The rights- based approach has contributed to the failure to come to terms with the implications of the separation of criminal. .. admittedly there is fierce competition for this title The Court of Aix writes that, [w]e do not envy the English their tastes, their habits, their enthusiasm for their laws; we oppose to these declamations the experience and the opinion of one of the greatest magistrates of our time [Sộguier], to whom we could add an infinitude of others:, see Esmein, above n41, at 468-9; according to the Court of Nợmes,... ensure the effectiveness of the system of xix Columns Design Ltd / Job: Fair_ Trials / Division: Introduction /Pg Position: 1 / Date: 17/7 JOBNAME: Summers Fair Tria PAGE: 2 SESS: 46 OUTPUT: Tue Jul 17 12:49:29 2007 Introduction prosecutions A more coherent understanding of fairness requires recognition of the reliance of the role of the defence (and therefore the rights of the accused) on the institutional . 09:13:57 2007 Fair Tr ials The European Criminal Procedural Tradition and the European Court of Human Rights SARAH J SUMMERS Columns Design Ltd / Job: Fair_ Trials. Nineteenth Century 61 A The Institutional Nature of the Rights of the Accused’ 61 B The Rights of the Defence at Trial 63 (i) The Presence of the Accused 63 (ii)